Guardian ad Litem Contends Undue Influence

This is a probate proceeding that questions the will of Vito DeMarco, the deceased. The case involves the administrator of the estate, Christina Matozzo versus the Trustee of the Vito DeMarco Living Trust, Anthony DeMarco. Mr. DeMarco is seeking to declare that the trust is invalid. The case is being heard in the Surrogate’s Court of the State of New York.

Proceedings

There are currently three different proceedings that are pending in regard to the Vito DeMarco estate. The first is the proceeding that seeks to assert that the Vito DeMarco Living Trust that is dated the 19th of March, 2001 as invalid.

The second proceeding is to probate a document that is dated the 19th of March, 2001 as the last will and testament of the decedent.

The final proceeding is for the trustee, Anthony DeMarco, of the Vito DeMarco Living Trust to resolve his account of the time frame from the 19th of March, 2001 through the 9th of May, 2007.

A New York Probate Lawyer said the guardian ad litem has been appointed for Mary LoCicero, one of the daughters of the decedent for all three of the proceedings.

Background

The decedent passed away on the 9th of May in 2007. He is survived by four distributes which include two daughters, Mary LoCicero and Christina Matozzo, Anthony DeMarco, his son, and Valerie, a granddaughter, who is the only daughter of the decedent’s son Joseph DeMarco who preceded him in death.

The living trust only provides for Anthony and omits both Mary and Christina specifically and Valerie is not mentioned in the living trust at all.

The guardian ad litem for Mary has issued a preliminary report and states that based upon his current findings recommends that he should remain as a representative for his wards interests in all of the proceedings. A Staten Island Probate Lawyer said the guardian ad litem states that Christina alleges that Anthony has exerted undue influence and committed fraud towards the decedent during a time when he was depressed and ill. The guardian says that in regard to his findings he finds it necessary for him to participate in the probate proceedings and to continue to represent his ward and the court agrees with this conclusion.

The guardian has asked for an interim fee for the services that have been provided through filing of the preliminary report as the court bears the final burden of determining the legal fees that are charged to the estate.

Under SCPA a guardian ad litem is entitled to a fee for the services that he or she provides for their client. The nature of the role played by the guardian is an additional consideration when determining the amount of the fee that is owed. Typically this fee will be considered an administration expense for the estate and is paid from the assets of the estate.

In this case the guardian ad litem has filed affirmation for his legal services documenting 12 hours of time spent on these proceedings. A Suffolk County Probate Lawyer said this time includes reviewing the court files, meeting with the parties, preparing correspondence, locating witnesses of the will, and preparing his preliminary report.

The court will grants the guardian ad litem a fee of $4200 based on his typical billing rate. The fee will be paid from the estate within 30 days of it being entered into probate.

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